0968 Draft Mandamus re New Mexico Transfer to MDL (00032623) · T. Response of Tyco et al. in Opposition to State of New Mexico’s Motion to Vacate Conditional Transfer Order No

Case No. ___________________

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

In re STATE OF NEW MEXICO AND THE NEW MEXICO

ENVIRONMENT DEPARTMENT, Petitioners

From the United States Judicial Panel on Multidistrict Litigation

IN RE: STATE OF NEW MEXICO AND THE NEW MEXICO ENVIRONMENT DEPARTMENT

PETITION FOR WRIT OF MANDAMUS

HECTOR BALBERAS Attorney General P. Cholla Khoury William G. Grantham Assistant Attorneys General [email protected] [email protected] Post Office Drawer 1508 Santa Fe, NM 87504 (505) 717-3500 Christopher Atencio Assistant General Counsel Jennifer Hower General Counsel Special Assistant Attorneys General [email protected] [email protected] New Mexico Environment Department

KANNER & WHITELEY, LLC Allan Kanner Elizabeth B. Petersen Allison S. Brouk 701 Camp Street New Orleans, LA 70130 Telephone: (504) 524-5777 Special Counsel for Plaintiff –Petitioners Attorney General, State of New Mexico

ii

121 Tijeras Ave. NE Albuquerque, NM 87102 Phone: (505) 222-9554 Fax: (505) 383-2064

iii

Case No. ___________________

UNITED STATES COURT OF APPEALS FOR THE FOUTH CIRCUIT




IN RE: STATE OF NEW MEXICO AND THE NEW MEXICO

ENVIRONMENT DEPARTMENT

CERTIFICATE OF INTERESTED PERSONS

The undersigned counsel of record certifies, pursuant to Fed. R. App. P. 26.1,

that the following have an interest in the outcome of this case. These representations

are made in order that the judges of this Court may evaluate possible disqualification

or recusal.

A. Plaintiffs-Petitioners:

1. The State of New Mexico

2. New Mexico Environment Department

B. Counsel for Plaintiffs-Petitioners:

3. Cholla Khoury

4. William Grantham

iv

5. Jennifer Hower

6. Christopher Atencio

7. Allan Kanner

8. Allison Brouk

9. Elizabeth Petersen

C. Defendants-Respondents:

10. The United States Judicial Panel of Multidistrict Litigation

D. Other Interested Parties:

11. Robert A. Bilott Plaintiff’s Advisory Counsel, MDL No. 2873

12. Michael A. London

Plaintiffs’ Co-Lead Counsel, MDL No. 2873

13. Paul Napoli Plaintiffs’ Co-Lead Counsel, MDL No. 2873

14. Scott Summy

Plaintiffs’ Co-Lead Counsel, MDL No. 2873

15. Fred Thompson, III Plaintiffs’ Liaison Counsel, MDL No. 2873

16. Joseph G. Petrosinelli

Defendants’ Co-Lead Counsel, Defendants’ Coordination Committee, MDL No. 2873

17. Michael A. Olsen

Defendants’ Co-Lead Counsel, Defendants’ Coordination Committee, MDL No. 2873

18. David E. Dukes

v

Defendants’ Co-Liaison Counsel, Defendants’ Coordination Committee, MDL No. 2873

19. Brian C. Duffy

Defendants’ Co-Liaison Counsel, Defendants’ Coordination Committee, MDL No. 2873

20. Christina M. Falk United States Department of Justice, MDL No. 2873

21. David Mitchell United States Department of Justice, D.N.M.

22. Shari Howard United States Department of Justice, D.N.M.

23. Erica Zilioli United States Army Corps of Engineers, D.N.M.

E. Presiding District Court Judge, MDL No. 2873:

24. Honorable Richard Mark Gergel

U.S. District Court for the District of South Carolina Dated: _February 1, 2021_______ Respectfully submitted,

HECTOR BALBERAS Attorney General P. Cholla Khoury William G. Grantham Assistant Attorneys General [email protected] [email protected] Post Office Drawer 1508 Santa Fe, NM 87504 (505) 717-3500


vi

Christopher Atencio Assistant General Counsel Jennifer Hower General Counsel Special Assistant Attorneys General [email protected] [email protected] New Mexico Environment Department 121 Tijeras Ave. NE Albuquerque, NM 87102 Phone: (505) 222-9554 Fax: (505) 383-2064

vii

Table of Contents CERTIFICATE OF INTERESTED PERSONS ...................................................... iii

TABLE OF AUTHORITIES ................................................................................... ix

INDEX TO APPENDIX ......................................................................................... xii

RELIEF SOUGHT BY PETITIONERS .................................................................... 1

QUESTION PRESENTED ........................................................................................ 5

STATEMENT OF FACTS ........................................................................................ 5

I. STATE ACTION WAS NECESSARY TO PROTECT HUMAN HEALTH AND THE ENVIRONMENT FROM THE IMMINENT AND SUBSTANTIAL ENDANGERMENT CAUSED BY THE UNITED STATES’ RELEASES OF PFAS-CONTAINING AFFF AT CANNON AND HOLLOMAN AIR FORCE BASES. ............................................................... 5

A. PFAS have been detected at Cannon and Holloman at Extremely High Levels. ................................................................................................... 5

B. PFAS Contamination at the Bases Remains Unabated and Continues to Spread and Endanger the Public Health and the Environment. ........ 8

II. PROCEEDINGS IN THE DISTRICT OF NEW MEXICO ............................. 9 III. AFFF MDL IN THE DISTRICT OF SOUTH CAROLINA ..........................10 IV. THE STATE’S CASE WAS TRANSFERRED TO THE AFFF MDL

DESPITE THE PARTIES’ PREFERENCE TO REMAIN IN THE DISTRICT OF NEW MEXICO AND MOVE FORWARD WITH THE LITIGATION THERE. ...................................................................................13

V. THE AFFF MDL COURT DENIED THE STATE’S MOTION FOR LEAVE TO FILE MOTION FOR PRELIMINARY INJUNCTION. .........................16

ARGUMENT ...........................................................................................................18

viii

I. THE RELIEF REQUESTED BY THE STATE IS APPROPRIATE UNDER THESE CIRCUMSTANCES. ........................................................................19

II. NEW MEXICO HAS A CLEAR AND INDISPUTABLE RIGHT TO CONTROL THE PROSECUTION OF ITS CLAIMS OUTSIDE OF THE AFFF MDL. ....................................................................................................21

A. 28 U.S.C. § 1407 Does Not Strip the State of its Police Powers or its Right to Control its Own Claims and have those Claims be Heard as Provided by the United States Constitution. .......................................22

B. RCRA Provides for Prompt Relief as Necessary to Protect Public Health and the Environment that is Threatened by Releases of Hazardous Substances. ........................................................................27

III. NEW MEXICO HAS NO OTHER MEANS TO MOVE ITS CASE FORWARD AND LITIGATE ITS MOTION FOR PRELIMINARY INJUNCTION OTHER THAN A WRIT OF MANDAMUS FROM THIS COURT. ..........................................................................................................29

CONCLUSION ........................................................................................................31

ix

TABLE OF AUTHORITIES

Page(s)

Cases

Alden v. Maine, 527 U.S. 706 (1999) .............................................................................................25

Alfred L. Snapp & Son, Inc. v. Puerto Rico, ex rel. Barez, 458 U.S. 592 (1982) ................................................................................ 24, 27, 30

Atascadero State Hospital v. Scanlon, 473 U.S. 234 (1985) .............................................................................................25

Bankers Life & Cas. Co. v. Holland, 346 U.S. 379 (1953) ...................................................................................... 18, 19

Bond v. United States, 572 U.S. 844 (2014) .............................................................................................25

Cheney v. United States District Court for the District of Columbia, 542 U.S. 367 (2004) ................................................................................ 18, 19, 20

Crandle v. City & County of Denver, 594 F.3d 1231 (10th Cir. 2010) ............................................................................28

FedEx Ground Package Sys., Inc. v. U.S. Judicial Panel on Multidistrict Litig., 662 F.3d 887 (7th Cir. 2011) ................................................................................20

Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985) .............................................................................................23

Georgia v. Pa. R. Co., 324 U.S. 439 (1945) .............................................................................................23

Gregory v. Ashcroft, 501 U.S. 452 (1991) ...................................................................................... 22, 23

In re Abbott, 954 F.3d 772 (5th Cir. 2020) ......................................................................... 24, 26

x

In re Murphy-Brown, LLC, 907 F.3d 788 (4th Cir. 2018) ................................................................................21

In re Nat’l Prescription Opiate Litig., 956 F.3d 838 (6th Cir. 2020) ......................................................................... 25, 26

Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905) ............................................................................ 22, 23, 24, 27

Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26 (1998) ...............................................................................................25

Marshall v. United States, 414 U.S. 417 (1974) .............................................................................................23

Meghrig v. KFC W., Inc., 516 U.S. 479 (1996) .............................................................................................28

Nat’l Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012) .............................................................................................27

Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (1947) .............................................................................................31

South Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613 (Mem) .........................................................................................23

Will v. Mich. Dep’t of State Police, 491 U.S. 58 (1989) ...............................................................................................31

Federal Statutes

28 U.S.C. §1345 ......................................................................................................... 9

28 U.S.C. § 1407 ............................................. 1, 4, 18, 19, 20, 21, 22, 25, 26, 27, 31

28 U.S.C. §1651 .......................................................................................................20

42 U.S.C. §§ 6901 et seq. .............................................................................. 2, 28, 29

State Statutes

NMSA § 8-5-2 .........................................................................................................24

xi

NMSA 1978, §§ 74-4-1 et seq. ..................................................................... 2, 24, 29 Other Sources

U.S. Const. Amend. X..............................................................................................22

New Mexico Const., Art. XX § 21 ......................................................................3, 24

Executive Order 12580 .............................................................................................. 8

xii

INDEX TO APPENDIX

Tab Description Page

A. JPML Transfer Order, June 2, 2020, JPML Entry No. 631 [MDL Rec. Doc. 650] A001

B. JPML Conditional Transfer Order No. 26, Feb. 20, 2020 [MDL Rec. Doc. 603] A006

C. First Amended Complaint, July 24, 2019 [State of New Mexico v. United States, et al., Dkt No. 6:19-cv-00178, Rec. Doc. 9] A008

D. Plaintiffs’ Motion for Preliminary Injunction, July 24, 2019 [State of New Mexico v. United States, et al., Dkt No. 6:19-cv-00178, Rec. Doc. 10-14] A042

E. JPML Transfer Order, Dec. 7, 2018, JPML Entry No. 1 [MDL Rec. Doc. 239] A357

F. Case Management Order 2, March 20, 2019 [MDL Rec. Doc. 48] A367

G. Case Management Order 3, April 26, 2019 [MDL Rec. Doc. 72] A387

H. Case Management Order 2A, June 26, 2019 [MDL Rec. Doc. 130] A413

I. United States’ Cross-Motion to Dismiss, Sept. 7, 2019 [State of New Mexico v. United States, et al., Dkt No. 6:19-cv-00178, Rec. Doc. 31] A415

J. Plaintiff’s Response in Opposition to Defendants’ Motion to Dismiss and Reply in Support of Plaintiff’s Motion for Preliminary Injunction, Sept. 27, 2019 [State of New Mexico v. United States, et al., Dkt No. 6:19-cv-00178, Rec. Doc. 35] A536

K. United States Reply in Support of Cross-Motion to Dismiss, Oct. 28, 2019 [State of New Mexico v. United States, et al., Dkt No. 6:19-cv-00178, Rec. Doc. 40] A579

xiii

L. Notice of Completion of Briefing for the United States’ Cross-Motion to Dismiss (ECF 31), Oct. 29, 2019 [State of New Mexico v. United States, et al., Dkt No. 6:19-cv-00178, Rec. Doc. 41] A594

M. Notice of Completion of Briefing for Plaintiffs Motion for Preliminary Injunction (ECF 10), Oct. 30, 2019 [State of New Mexico v. United States, et al., Dkt No. 6:19-cv-00178, Rec. Doc. 42] A597

N. Notice – Reassigned to District Judge Kea W. Riggs as the Trial Judge, Jan. 6, 2020 [State of New Mexico v. United States, et al., Dkt No. 6:19-cv-00178, Rec. Doc. 46] A600

O. Joint Status Report for February 7, 2020 Status Conference, Feb. 7, 2020 A602

P. AFFF MDL 2873 Status Conference Tr., Feb. 7, 2020 [MDL Rec. Doc. 497] A619

Q. United States of America’s Notice of Potential Tag Along Action, Feb. 18, 2020 [MDL Rec. Doc. 600] A629

R. State of New Mexico’s Notice of Opposition to Conditional Transfer Order, Feb. 27, 2020, [State of New Mexico v. United States, et al., Dkt No. NM/1:19-cv-00178, Rec. Doc. 3] A671

S. Plaintiff’s Motion to Vacate Conditional Transfer Order No. 26, March 13, 2020 [JPML Rec. Doc. 618] A673

T. Response of Tyco et al. in Opposition to State of New Mexico’s Motion to Vacate Conditional Transfer Order No. 26, April 3, 2020 [MDL Rec. Doc. 625] A689

U. Plaintiffs’ Executive Committee’s Response to New Mexico’s Motion for Leave to File Motion for Preliminary Injunction, Aug. 17, 2020 [MDL Rec. Doc. 760] A728

V. United States Response in Opposition to State of New Mexico for Leave to File Motion for Preliminary Injunction, Aug. 17, 2020 [MDL Rec. Doc. 761] A735

xiv

W. Defendants’ Coordination Committee’s Response to the State of New Mexico’s Motion for Leave to file Motion for Preliminary Injunction, Aug. 17, 2020 [MDL Rec. Doc. 762] A789

X. MDL Order, Sept. 3, 2020 [MDL Rec. Doc.801] A860

Y. Final Site Investigation Report, Investigation of Aqueous Film Forming Foam Cannon Air Force Base, New Mexico, Aug. 22, 2018 A863

Z. Memorandum Regarding the State and Sovereign Plaintiff Cases, Oct. 12, 2020 A933

AA. Complaint, United States of America v. New Mexico Environment Department, et al., Case No. 2:19-cv-00046 (D.N.M.) Jan. 17, 2019 [Rec. Doc. 1] A950

xv

Case No. ___________________





IN RE: STATE OF NEW MEXICO AND THE NEW MEXICO

ENVIRONMENT DEPARTMENT

STATEMENT REGARDING ORAL ARGUMENT

Pursuant to Federal Rule of Appellate Procedure 34(a)(1) and Fourth Circuit

Rules 21 and 34(a)(1), Plaintiff-Petitioners respectfully requests that the Court hear

oral argument because this Petition implicates significant and unprecedented due

process and constitutional concerns.

xvi

Case No. ___________________





IN RE: STATE OF NEW MEXICO AND THE NEW MEXICO ENVIRONMENT DEPARTMENT

BRIEF OF PETITIONERS __________________________________________________________________

HECTOR BALBERAS Attorney General P. Cholla Khoury William G. Grantham Assistant Attorneys General [email protected] [email protected] Post Office Drawer 1508 Santa Fe, NM 87504 (505) 717-3500 Christopher Atencio Assistant General Counsel Jennifer Hower General Counsel Special Assistant Attorneys General [email protected] [email protected] New Mexico Environment Department 121 Tijeras Ave. NE


xvii

Albuquerque, NM 87102 Phone: (505) 222-9554 Fax: (505) 383-2064

1

RELIEF SOUGHT BY PETITIONERS

Petitioners, the State of New Mexico and the New Mexico Environment

Department (“NMED”) (collectively, “the State” or “New Mexico”), request that

this Court vacate the June 2, 2020 order of the Judicial Panel on Multidistrict

Litigation (“JPML” or “Panel”), JPML Rec. Doc. 650 [A001].1 The Panel’s order

transferred the State’s action brought under state and federal environmental statutes

to protect the health of its citizens and the environment, to In re: Aqueous Film-

Forming Foams (AFFF) Products Liability Litigation, MDL No. 2873 (“AFFF

MDL”), pending in the District of South Carolina. Petitioners here seek a writ of

mandamus, pursuant to 28 U.S.C. § 1407(e), ordering the Panel to vacate its order

and remand of the State’s case to the District of New Mexico to allow the State to

prosecute its claims. JPML’s transfer order exceeds the limited authority granted to

the federal judiciary by Congress in 28 U.S.C. § 1407, and violates the well-

established Constitutional principles of federalism, which grant authority to the State

to bring an action pursuant to its police powers to abate an imminent and substantial

endangerment to human health and the environment caused by a defendant’s

repeated and uncontrolled discharge of toxic chemicals into the environment.

1 References to “A__” are to the Appendix; references to “JPML Rec. Doc. __” are to filings in the United States Judicial Panel on Multidistrict Litigation; references to “AFFF MDL Rec. Doc. ___” are to filings in MDL 2783 in the District of South Carolina; and references to “D.N.M. Rec. Doc. ___” are to filings in the District of New Mexico.

2

The State brought this civil action against the United States and the United

States Department of the Air Force (collectively “Defendants” or “United States”),

pursuant to the New Mexico Hazardous Waste Act, NMSA 1978, §§ 74-4-1 to -14

(“HWA”), and the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901, et

seq. (“RCRA”), after the United States failed for years to abate the imminent and

substantial endangerment to human health and the environment at two Air Force

bases, Cannon and Holloman (“the Bases”), resulting from the Defendants’ improper

and ongoing disposal and failure to contain hazardous and solid wastes at the Bases,

including per- and polyfluoroalkyl substances (“PFAS”), which are present in

“aqueous film-forming foam” (“AFFF”), a product that Defendants have and

continue to use for firefighting training activities and petroleum fire extinguishment

at the Bases. See First Amended Compl., D.N.M. Rec. Doc. 9 [A008]. That

imminent and substantial endangerment continues into the present day and will

continue into the future unless action is taken. Without relief from this Court, it will

remain, and worsen, until the MDL has run its course, which likely will take years.

The dangerous levels of PFAS detected at Cannon and Holloman are shocking

and found to be migrating into offsite public and private wells that provide drinking

water and livestock and irrigation water to the surrounding communities, impacting,

among other things, the public health, New Mexico’s dairy industry, residential and

3

commercial property values, local and state economies, and the livelihood of the

communities surrounding the Bases.

Although Defendants acknowledge that the PFAS contamination at and

around the Bases resulted from their use of AFFF, they have failed to take the

necessary actions to clean up the waste or cooperate with the State in its efforts to

protect New Mexicans from further harm. When the State asked Defendants to take

immediate steps to clean up the contamination, they refused. When the State ordered

Defendants to clean up the contamination pursuant to hazardous waste permits, the

United States filed a lawsuit against NMED in the District of New Mexico

challenging its permitting authority.2 Further, despite requests, Defendants have not

provided the State with complete information already within their possession

regarding the full nature and extent of this problem. Thus, to fulfill its constitutional

obligation to protect the interests of its citizens in a healthy and clean environment,

see New Mexico Const., Art. XX § 21, the State brought this action under the HWA

and RCRA seeking injunctive relief to remedy the endangerment caused by

Defendants’ contamination.

Despite the desperate need for action, the JPML’s improper transfer of the

State’s case to the AFFF MDL has obstructed the State’s ability to protect its public

2 Complaint, United States of America v. New Mexico Environment Department, et al., Case No. 2:19-cv-00046 (D.N.M.) (filed Jan. 17, 2019) [A950].

4

and its environment. The State’s claims against Defendants are asserted under its

police powers and seek injunctive relief, not money damages, needed to sufficiently

delineate as well as abate the imminent and substantial endangerment Defendants

have created. Prior to transfer to the AFFF MDL, the State filed and fully briefed a

motion for preliminary injunction, seeking immediate action from Defendants to

address the contamination at the Bases. In opposing transfer, the State urged the

Panel to allow its case, including a decision on the pending motion, to move forward

in the District of New Mexico. But, the Panel transferred the case to the AFFF MDL,

where the State’s efforts to obtain emergency relief have been rebuffed.

The JPML lacks the authority under 28 U.S.C. §1407 to strip the State of its

police powers and ability to control its case as needed to address the public health,

environmental, and economic crises that New Mexicans living near the Bases are

facing. This nation’s system of dual sovereignty cannot be suppressed unless

Congress has explicitly expressed its intention to do so, and Section 1407 says

nothing on the issue. Contrary to these well-founded principles, the JPML’s transfer

order has interfered with the dual sovereignty enjoyed by the states and subjected

the State to a case management system that commandeers State resources and seizes

the State’s control of its case. To cure these wrongs, the State requests that this

Court reverse the order of the JPML that transferred the State’s case to the AFFF

MDL and remand the case to the District of New Mexico.

5

QUESTION PRESENTED

Whether a sovereign state, acting under its parens patriae authority and

exercising its rights under federal statutes, may be stripped of its ability to advocate

for and protect its citizens from ongoing harm and further risk of harm from toxic

contaminants infiltrating the environment, by the JPML acting pursuant to 28 U.S.C.

§1407, which does not expressly limit state’s rights to act pursuant to its

Constitutionally protected police powers.

STATEMENT OF FACTS

I. STATE ACTION WAS NECESSARY TO PROTECT HUMAN HEALTH AND THE ENVIRONMENT FROM THE IMMINENT AND SUBSTANTIAL ENDANGERMENT CAUSED BY THE UNITED STATES’ RELEASES OF PFAS-CONTAINING AFFF AT CANNON AND HOLLOMAN AIR FORCE BASES.

A. PFAS have been detected at Cannon and Holloman at Extremely High Levels.

For decades, Defendants used AFFF-containing PFAS at the Bases in the

course of firefighting and training activities, thereby discharging PFAS into the

environment. PFAS chemicals, which include perfluorooctanoic acid (“PFOA”)

and perfluorooctane sulfonic acid (“PFOS”), are both biologically and chemically

stable in the environment, resistant to degradation, and are known to have negative

health effects.3 According to the U.S. Agency for Toxic Substances and Disease

3 See U.S. EPA Technical Fact Sheet—PFOS and PFOA (Nov. 2017), available at https://www.epa.gov/sites/production/files/2017-

6

Registry (“ATSDR”), studies have shown that exposure to certain PFAS may:

contribute to low birth weight in newborns and increase the possibility of

preeclampsia in women; interfere with the body’s natural hormones; increase

cholesterol levels; affect the immune system; or increase the risk of cancer.4 The

United States has not disputed the seriousness of the impacts associated with

exposure to PFAS chemicals.

At Cannon, where Defendants have for decades used and continue to use

AFFF for firefighting training and fire extinguishment, PFAS are found in

groundwater, soil, surface water, and sediment at several locations throughout the

Base at extremely high levels. An August 2018 site inspection indicated that six

groundwater samples exceeded the United States Environmental Protection

Agency’s (“EPA”) Lifetime Health Advisory (“HA”) limit of 70 parts per trillion

(“ppt”) where PFOS and PFAS levels are combined. Final Site Investigation Report,

Investigation of Aqueous Film Forming Foam Cannon Air Force Base, New Mexico,

(“Cannon SI Report”), at 37, attached as Exhibit A to the Certification of Cholla

Khoury in Support of the State of New Mexico’s Motion for Preliminary Injunction,

12/documents/ffrrofactsheet_contaminants_pfos_pfoa_11-20-17_508_0.pdf (last accessed Jan. 22, 2021). 4 ATDSR, An Overview of Perfluoroalkyl and Polyfluoroalkyl Substances and Interim Guidance for Clinicians Responding to Patient Exposure Concerns, at 8 (rev. Dec. 6, 2019), available at https://www.atsdr.cdc.gov/pfas/docs/clinical-guidance-12-20-2019.pdf (last accessed Jan. 25, 2021).

7

D.N.M. Rec. Doc. 14-1 [A121]. Concentrations ranged from 130 ppt to 26,200 ppt,

nearly 375 times the EPA’s HA. See Cannon AFB-Onsite 2017 PFAS Soil

Exceedances, attached as Exhibit B to the Certification of Mark Laska, Ph.D., in

Support of the State of New Mexico’s Motion for Preliminary Injunction, D.N.M.

Rec. Doc. 13-2 [A100].

Around Cannon near the city of Clovis, PFAS have migrated offsite via

groundwater and infiltrated water supplies of neighboring properties. See Cannon

AFB-Onsite & Offsite 2017, 2018 & 2019 PFAS Groundwater Exceedances,

attached as Exhibit E to the Certification of Mark Laska, Ph.D., in Support of the

State of New Mexico’s Motion for Preliminary Injunction, D.N.M. Rec. Doc. 13-5

[A106]. Families and businesses in the neighboring city of Clovis, including those

associated with cattle and dairy production, have already suffered catastrophic losses

as a result of the contamination and risk losing much more as the contamination

continues to spread.

Similarly, at Holloman, PFAS were detected in soil, surface waters, sediment,

and groundwater throughout the base at levels even higher than at Cannon, in some

instances at more than 4,314 times the EPA’s HA. See Detection Summary of Lake

Holloman Sampling, attached as Exhibit E to the Certification of Cholla Khoury in

Support of the State of New Mexico’s Motion for Preliminary Injunction, D.N.M.

Rec. Doc. 14-5 [A333]. PFAS contamination extends to valuable public resources

8

at Holloman, including Lake Holloman. See Letter from Attorney General Balderas

to U.S. Air Force (May 9, 2019), attached as Exhibit J to the Certification of Cholla

Khoury in Support of the State of New Mexico Motion for Preliminary Injunction,

D.N.M. Rec. Doc. 14-5 [A350]. Lake Holloman is considered an important habitat

for birds, including migrating ducks, shorebirds, and several federally listed

endangered species and state-listed species of concern.5 Lake Holloman also serves

as a valuable recreational resource to the community surrounding the Base.6

B. PFAS Contamination at the Bases Remains Unabated and Continues to Spread and Endanger the Public Health and the Environment.

The United States does not and could not contest that there are high levels of

PFAS contamination at Cannon and Holloman and that remediation is necessary.

However, the United States has not contained or cleaned up the contamination at

either of the Bases. Nor has the United States taken steps to delineate the full extent

of the contamination at either Base.7 Human, environmental, and economic health

remains threatened as a result of the uncontrolled contamination emanating from

Cannon and Holloman.

5 See Lake Holloman Recreational Area Development Environmental Assessment (Aug. 2009), available at https://apps.dtic.mil/dtic/tr/fulltext/u2/a636343.pdf (last accessed Jan. 22, 2021). 6 Id. 7 Although the federal Department of Defense is required to exercise cleanup functions at the Bases pursuant to Executive Order 12580, it argues in this case that it has contaminated too many of its own facilities and thus, it is prevented from addressing the contamination at the Bases. See United States Motion to Dismiss, D.N.M. Rec. Doc. 31 [A415].

9

II. PROCEEDINGS IN THE DISTRICT OF NEW MEXICO The State filed its initial complaint in the District of New Mexico on March

5, 2019, asserting a claim under the HWA against Defendants the United States and

the U.S. Department of the Air Force for the Defendants’ violations of the HWA for

causing an imminent and substantial endangerment to human health and the

environment.8 On July 24, 2019, the State filed an Amended Complaint, adding a

cause of action under RCRA. State of New Mexico’s First Amended Complaint

(July 24, 2019), D.N.M Rec. Doc. 9 [A008]. Also on that date, the State filed a

Motion for Preliminary Injunction seeking immediate, limited injunctive relief

necessary to stop the imminent and continued threat of injury to communities

surrounding the bases that had been exposed to Defendants’ contaminants. State of

New Mexico’s Motion for Preliminary Injunction,9 D.N.M Rec. Doc. 10 [A042].

Defendants, together with their opposition to the State’s motion for preliminary

injunction, moved to dismiss the case. United States Motion to Dismiss and

Opposition to State’s Motion for Preliminary Injunction, D.N.M. Rec. Doc. 31

8 Suits against the United States must be brought in federal court. 28 U.S.C. §1345. 9 The Plaintiff’s Preliminary Injunction filing encompasses D.N.M. Rec. Doc. Nos. 10-14, as listed here: D.N.M. Rec. Doc. 10 – Plaintiffs’ Motion for Preliminary Injunction, D.N.M. Rec. Doc. 11 – Plaintiffs’ Brief in Support of Motion for Preliminary Injunction, D.N.M. Rec. Doc. 12 – Certification of Dave Cobrain In Support of Plaintiffs’ Motion for Preliminary Injunction, D.N.M. Rec. Doc. 13 – Certification of Mark Laska, Ph.D., In Support of Plaintiffs’ Motion for Preliminary Injunction and D.N.M. Rec. Doc. 14 – Certification of Cholla Khoury in Support of Plaintiffs’ Motion for Preliminary Injunction.

10

[A415]. The State’s motion for preliminary injunction, as well as Defendants’

motion to dismiss, were fully briefed and had been awaiting a decision from the New

Mexico federal district court for eight months at the time the case was transferred to

the AFFF MDL.10 See State’s Response in Opposition/ Reply in Support, D.N.M.

Rec. Doc. 35 [A536]; United States Reply in Support, D.N.M. Rec. Doc. 40 [A579];

Notice of Completion of Briefing US Mot. to Dismiss, D.N.M. Rec. Doc. 41 [A594];

Notice of Completion of Briefing State Motion for Preliminary Injunction, D.N.M.

Rec. Doc. 42 [A597].

III. AFFF MDL IN THE DISTRICT OF SOUTH CAROLINA

The AFFF MDL initially consisted mainly of product liability cases brought

by individuals and water providers against the main manufacturers of PFAS and

AFFF products seeking, in part, money damages. See Transfer Order, Entry No. 1

(Dec. 7, 2018), at 3, AFFF MDL Rec. Doc. 239 [A357] (“With some minor

variations, the same group of AFFF manufacturer defendants is named in each action

. . . additionally, the AFFF manufacturers likely will assert identical government

contractor defenses in many of the actions.”). A number of sovereigns were later

transferred to the MDL, but those cases, in large part, also assert product liability

10 While the State’s motion for preliminary injunction was pending in the District of New Mexico, that district faced a shortage of judges. The State’s case was assigned to various judges during that time period and had recently been assigned to the Honorable Kea W. Riggs just prior to transfer to the MDL. See Notice of Reassignment (Jan. 6, 2020), D.N.M. Rec. Doc. 46 [A600].

11

claims seeking monetary relief, with a few exceptions that were transferred to the

MDL at a later date, including the State’s case. See Memorandum Regarding the

State and Sovereign Plaintiffs’ Cases, at 4 [A936] (“The sovereigns bring claims

based primarily in tort against the private companies that designed, developed,

manufactured, marketed, supplied, distributed, sold, and delivered AFFF products

or their hazardous components. The claims include, among others: negligence,

public and private nuisance, trespass, defective product design, failure to warn, and

restitution/unjust enrichment.”).

The AFFF MDL court has entered a series of Case Management Orders that

subjects New Mexico to the control of plaintiffs’ co-lead counsel and divests the

State of its sovereign police power to protect its citizens and environment. For

example, Case Management Order 2, which appointed co-lead counsel for the

parties, vests plaintiffs’ co-lead counsel with the authority and duty to, for example,

sign and file pleadings related to all actions; initiate, coordinate and conduct

discovery on behalf of all plaintiffs in the MDL; issue, in the name of all plaintiffs,

necessary discovery requests; explore, develop and pursue all settlement options

pertaining to any claim, or portion thereof, in any case filed in the MDL; and act as

a spokesperson for all plaintiffs at pretrial proceedings. See Case Management

Order 2, AFFF MDL Rec. Doc. 48, at 5-7 [A361-636]. Further, Case Management

Order No. 2A clarifies that any party seeking to file a motion must first seek a

12

signature from co-lead counsel, and if co-lead counsel refuses to sign the pleading,

the moving party must seek leave of court. See Case Management Order 2A, AFFF

MDL Rec. Doc. 130, at 1 [A413]. As described below in the context of the State’s

attempts to seek preliminary relief, these requirements have prevented the State from

prosecuting its case.

Similarly, Case Management Order No. 3 requires that all substantive

communications to the MDL court must first be sent to plaintiffs’ co-lead counsel

before being submitted to the court. See Case Management Order 3, AFFF MDL

Rec. Doc. 72, at 4 [A390]. Further still, Case Management Order No. 3 also provides

that the State must pay to be subjected to this control through an assessment of

common benefit fees and costs. See id. at 16 [A402] (“[T]he Court shall impose a

holdback assessment of 6% allotted for common benefit attorneys’ fees and 3%

allotted for reimbursement of permissible common benefit costs and expenses from

any settlement(s) or judgment(s) paid by defendant(s).”).11 These Case Management

Orders, which are intended to provide discretion in case management decisions to

the Plaintiffs’ Executive Committee (“PEC”) and Defense Coordinating Counsel

(“DCC”), were in place at the time of the State’s transfer to the MDL.

11 Here, the State is not challenging the MDL court’s broad discretion in case management, but rather the JPML’s order that ignored the implications that the MDL court’s orders would have on the State’s sovereign powers.

13

IV. THE STATE’S CASE WAS TRANSFERRED TO THE AFFF MDL DESPITE THE PARTIES’ PREFERENCE TO REMAIN IN THE DISTRICT OF NEW MEXICO AND MOVE FORWARD WITH THE LITIGATION THERE.

Neither the State nor Defendants sought transfer to the AFFF MDL. This case

was pending in the District of New Mexico for more than one year before transfer

to the AFFF MDL was ever suggested. The issue of transferring the State’s case

was first raised by the PEC and DCC, neither of whom are parties to this case, in a

Joint Status Report to the MDL court. Joint Status Report in AFFF MDL (Feb. 7,

2020), at 14 [A615].12 Thereafter, the State’s case was discussed by the MDL

Plaintiffs’ lead counsel and the MDL court at a case management conference, where

the court directed the United States to file a tag-along notice. AFFF MDL Status

Conf. Trans. (Feb. 7, 2020), 51:7-52:2; Id. 55:18-55:18, AFFF MDL Rec. Doc. 497

[A619]. In the course of the MDL court’s discussion of the State’s case, the MDL

court expressed his predisposition that the State would need to surrender some of its

rights upon entering the MDL. See Status Conf. Trans. (Feb. 7, 2020) 55:20-56:14,

(“[O]bviously, an MDL does not move with the velocity of an individual case. You

give up a little bit of that when you're in an MDL.”). AFFF MDL Rec. Doc. 497

[626-627].

12 Counsel for the State of New Mexico was not consulted prior to the inclusion of the discussion of the State’s case in this Joint Status Report.

14

On February 18, 2020, the United States submitted a Notice of Potential Tag-

Along Action to the JPML after being directed to do so by the MDL court. U.S.

Notice of Potential Tag Along (Feb. 18, 2020), AFFF MDL Rec. Doc. 600 [A629].

In its Notice, the United States took no position “as to whether inclusion of this

matter in the MDL is warranted.” Id. Prior to that submission, the United States

had informed the MDL court that it did not think that transfer was appropriate, and

that it sought to have the motions pending before the District of New Mexico heard

sooner rather than later. AFFF MDL Joint Status Report (Feb. 7, 2020), at 14

[A615]; AFFF MDL Status Conf. Trans. (Feb. 7, 2020), 51:7-52:2, AFFF MDL Rec.

Doc. 497 [A622-623].

The Clerk of the JPML issued a Conditional Transfer Order No. 26 (“CTO”)

on February 20, 2020, AFFF MDL Rec. Doc. 603 [A006]. The State filed a notice

of opposition to the CTO with the Panel. State of New Mexico v. United States, et

al., Dkt No. NM/1:19-cv-00178, Rec. Doc. 3 (Feb. 27, 2020)) (JPML Rec. Doc. 606,

MDL No. 2873) [A671]. New Mexico then filed a motion to vacate and a supporting

brief requesting that the Panel vacate the CTO, pursuant to Rule 7.1(f), arguing that

the criteria for transfer of its case to the MDL were not satisfied here. New Mexico’s

Motion to Vacate CTO 26 (Mar. 13, 2020), JPML Rec. Doc. 618 [A673]. Only a

small group of defendants, not party to the litigation between the State and the United

States, submitted a response in opposition. Response of Tyco Fire Products, LP,

15

Chemguard, Inc., and 3M Company in Opp’n to State of New Mexico’s Motion to

Vacate CTO 26 (Apr. 3, 2020), JPML Rec. Doc. 625 [A689]. Thereafter, on June

3, 2020, the JPML denied the State’s motion to vacate and ordered transfer of this

case to the AFFF MDL. JPML Transfer Order (June 3, 2020), JPML Rec. Doc. 650

[A001].

In its order, the Panel failed to properly justify the transfer of the State’s case.

As explained more fully below, the JPML ignored the framework for sovereign

rights to protect citizens and the environment from emergency environmental

conditions in favor of § 1407, contrary to the intent of § 1407 and the Constitutional

framework. Further, the JPML did not consider the impacts that the structure of the

AFFF MDL would have on the State’s case, and whether it was reasonable to impose

those effects for the sake of efficiency. Instead, the Panel based its decision on the

alleged common issues that the State’s case shared with other cases pending in the

MDL. This reasoning, however, ignores the Panel’s own explanation of the AFFF

actions within the MDL. In a prior order from the JPML, the Panel explained that

the actions to be transferred to the MDL each alleged that the use of AFFF caused

the release of PFOA and PFOS into groundwater and drinking water systems. The

Panel recognized that with some variations, “the same group of AFFF manufacturer

defendants are named,” in each of those actions, who will “assert identical

government contractor defenses.” JPML Transfer Order (Dec. 7, 2018), AFFF MDL

16

Rec. Doc. 239 [A357].13 In transferring the State’s case, the Panel did not justify

expanding the scope of the MDL to incorporate the claims of a sovereign state

seeking injunctive relief pursuant to its police powers to protect its people and

environment from immediate harm.

V. THE AFFF MDL COURT DENIED THE STATE’S MOTION FOR LEAVE TO FILE MOTION FOR PRELIMINARY INJUNCTION. Upon transfer of the State’s case to the AFFF MDL, its pending motion for

preliminary injunction was dismissed without prejudice pursuant to the AFFF MDL

Case Management Order No. 2A, AFFF MDL Rec. Doc. 130 [A413]. Because the

need for immediate relief remained, as it does to this day, the State sought to have

its motion heard before the MDL court.

To have its motion heard, the State faced a number of procedural obstacles set

in place by the MDL court’s various Case Management Orders. As required by Case

Management Order No. 2A, the State requested that the PEC sign the proposed

motion. The PEC declined to sign the State’s proposed motion but did not oppose

the State’s motion for leave to file its motion for preliminary injunction, which was

filed on August 4, 2020. The PEC, DCC, and the United States filed oppositions to

13 Significantly, in that same order, the Panel excluded claims from transfer to the MDL that were against direct dischargers. While those claims did not involve AFFF, the reasoning for excluding those cases against direct dischargers would also apply here, where the State has sued the United States as a discharger under RCRA and the HWA, as opposed to a manufacturer under product liability theories.

17

the State’s motion. Defense Coordination Committee’s Response to the State of New

Mexico’s Motion for Leave to File Motion for Preliminary Injunction, at 6 (Aug. 17,

2020), AFFF MDL Rec. Doc. 762 [A789]; PEC’s Response to State of New

Mexico’s Motion for Leave to File Motion for Preliminary Injunction, at 5 (Aug. 17,

2020), AFFF MDL Rec. Doc. 760 [A728]; United States Response in Opp’n to Mot.

for Leave (Aug. 17, 2020), AFFF MDL Rec. Doc. 761 [A735]. No party properly

justified the erosion of the State’s police powers that would result from the denial of

the motion.

The MDL Court denied the State’s motion, finding that “[a]llowing New

Mexico, and each of the thousands of Plaintiffs in this MDL, to conduct motion

practice outside the auspices of Lead Counsel would derail a centralized proceeding

. . . and impede each plaintiff’s opportunity to participate in an organized proceeding

and efficient resolution.” AFFF MDL Order (Sept. 3, 2020), AFFF MDL Rec. Doc.

801 [A860].14 In effect, the State was treated as just another plaintiff and its

sovereign rights were of no consequence.

As a result, the State’s case is now pending in the MDL with no avenue for

the needed immediate injunctive relief and continues to be controlled by counsel for

private plaintiffs within the MDL, as opposed to the Attorney General and NMED

14 In its order, the court failed to identify any anticipated ruling to be made in the context of the preliminary injunction motion that would disrupt the MDL.

18

Secretary, the duly elected and appointed official with the obligation to protect the

interests of the citizens of New Mexico regarding public health and the environment.

The State has alleged an imminent harm to its citizens and environment and has

sought preliminary relief in order to provide emergency relief. Despite the State’s

immediate needs, the JPML wrongfully transferred the case to the MDL where it

faces indefinite delays.

The unique nature of the State’s role counsels in favor of allowing the claims

proceed where they were filed. As explained more fully below, because 28 U.S.C.

§1407 does not expressly trump state sovereignty concerns, a writ of mandamus

reversing the transfer order of the JPML is appropriate here to allow the State to

protect its citizens from ongoing harm and further risk of harm from toxic

contaminants infiltrating the environment.

ARGUMENT

The writ of mandamus is a “drastic and extraordinary remedy reserved for

really extraordinary cases.”15 The writ has been used in the federal courts only to

compel it to exercise its authority when it is its duty to do.16 Only exceptional

circumstances amounting to a judicial usurpation of power will justify the invocation

15 Cheney v. United States District Court for the District of Columbia, 542 U.S. 367, 380 (2004). 16 See Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 382 (1953).

19

of this extraordinary remedy.17 Nevertheless, “[t]hese hurdles, however demanding,

are not insuperable.”18 In passing 28 U.S.C. §1407, Congress employed the

mandamus procedure to achieve expeditious resolution in the face of an unjust

transfer.19

A court may issue a writ of mandamus if the petitioner (1) has no other

adequate means to attain the desired relief; (2) has demonstrated a right to the

issuance of a writ that is clear and indisputable; and (3) satisfies the court that the

writ is appropriate under the circumstances.20 In certain circumstances, it may be

proper to issue the writ “to restrain a lower court when its actions would . . . result

in the intrusion by the federal judiciary on a delicate area of federal-state relations.”21

For the reasons set forth herein, these requirements are satisfied in this case.

I. THE RELIEF REQUESTED BY THE STATE IS APPROPRIATE UNDER THESE CIRCUMSTANCES.

A writ of mandamus is the only appropriate avenue to challenge the JPML’s

transfer of a case to an MDL. 28 U.S.C. § 1407(e) provides that review of an order

17 Id. at 383. 18 Cheney, 542 U.S. at 381. 19 See 28 U.S.C. §1407(e); see also Transfer of Pretrial Proceedings in Multidistrict Litigation (Feb. 28. 1968), Committee on the Judiciary, H.R. 1130, 90th Cong., 2d Sess. (to accompany S. 159) (“Subsection (e) limits review of transfer and subsequent decisions of the panel to mandamus in the Federal Court of Appeals for the transferee district. This procedure is more expeditions than appeal, and is consistent with the overall purpose of the proposed statute.”). 20 Id. at 380-81. 21 Id. at 381 (internal citations and quotation marks omitted).

20

of the JPML may be permitted “by extraordinary writ pursuant to the provisions of

title 28, section 1651, United States Code.” “Petitions for an extraordinary writ to

review an order to transfer . . . shall be filed only in the court of appeals having

jurisdiction over the transferee district.” Id.

Thus, according to the clear language of the statute, the State has no means of

going directly to the JPML to reconsider its Order, and mandamus is the sole means

of obtaining review of that Order. See, e.g., FedEx Ground Package Sys., Inc. v.

U.S. Judicial Panel on Multidistrict Litigation, 662 F.3d 887, 890 (7th Cir. 2011)

(finding that petitioner’s requested relief was appropriate because §1407(e) provides

that “[n]o proceedings for review of any order of the [JPML] may be permitted

except by extraordinary writ”). Although the State may seek remand from the AFFF

MDL court, it would be futile to do so here given the MDL court’s engineered

transfer of New Mexico’s case to the MDL in the first instance. As discussed above,

this case was transferred without any request from the parties to the litigation to do

so. Further, the MDL court expressed that it intends to defer to Plaintiffs’ Co-Lead

Counsel for matters of case management, who have opposed the State moving

forward with its case. AFFF MDL Order (Sept. 3, 2020), AFFF MDL Rec. Doc.

801 [A860]; see also In re Murphy-Brown, LLC, 907 F.3d 788, 796 (4th Cir. 2018)

(finding that “[a] motion for reconsideration would not have been an ‘adequate’

means of relief” where the trial court had already considered the legal issues of its

21

order, reasoning that “[p]arties need not endure repeated and irreparable

abridgements of their . . . rights simply to afford the district court a second chance”).

As such, a writ of mandamus seeking to remand the case to the District of New

Mexico is appropriate relief under the circumstances presented here, where transfer

of the State’s case to the AFFF MDL has resulted in the loss of control of the

litigation and the ability to move its case forward pursuant to its sovereign powers,

outside of the control of the MDL court or counsel for private litigants that are not

parties to the instant case.

II. NEW MEXICO HAS A CLEAR AND INDISPUTABLE RIGHT TO CONTROL THE PROSECUTION OF ITS CLAIMS OUTSIDE OF THE AFFF MDL.

In ordering transfer of the State’s case to the AFFF MDL, the JPML

improperly ignored and disrupted the framework that provides sovereign states the

obligation and authority to protect citizens and the environment from emergency

environmental conditions, despite Section 1407’s silence on the issue and contrary

to the intent of § 1407 and the Constitution. In transferring the State’s case, the

JPML improperly subjected the State to a case management structure within the

MDL geared towards facilitating the resolution of private parties’ claims for

monetary damages that has further torn away from the State rights associated with

litigating its own case and protecting its public and environment. Given these errors

on matters of constitutional and statutory law, the continuing spread of the

22

contamination on and around the Bases, and the State’s critical interest in protecting

public health and the environment, the requirements for issuing a writ are satisfied

here and the JPML transfer order must be reversed.

A. 28 U.S.C. § 1407 Does Not Strip the State of its Police Powers or its Right to Control its Own Claims and have those Claims be Heard as Provided by the United States Constitution.

Under the United States Constitution, state and federal governments are dual

sovereigns. The Federal Government is one of limited powers. The Tenth

Amendment provides that “powers not delegated to the United States by the

Constitution . . . are reserved to the States.” U.S. Const. Amend. X. This division

of powers specifically reserves for the states those powers necessary to guard and

protect the safety and health of the people and the natural resources of the state. See

Gregory v. Ashcroft, 501 U.S. 452, 457 (1991) (“As every schoolchild learns, our

Constitution established a system of dual sovereignty, between the States and the

Federal Government.”); see also Jacobson v. Commonwealth of Massachusetts, 197

U.S. 11 (1905).

These “police powers,” as they are known, belonging to the State impose

responsibilities and grant authority as parens patriae to act to protect the health,

safety, and welfare of the citizens of the State. Georgia v. Pa. R. Co., 324 U.S. 439,

451 (1945) (finding that a State’s sovereignty means it may, as “a representative of

the public,” sue to right a wrong that “limits the opportunities of her people, shackles

23

her industries, retards her development, and relegates her to an inferior economic

position among her sister States”). As the Chief Justice recently recognized in South

Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613 (Mem) (2020) (Roberts,

C.J., concurring):

Our Constitution principally entrusts “[t]he safety and the health of the people” to the politically accountable officials of the States “to guard and protect.” Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905). When those officials “undertake[] to act in areas fraught with medical and scientific uncertainties,” their latitude “must be especially broad.” Marshall v. United States, 414 U.S. 417, 427 (1974). Where those broad limits are not exceeded, they should not be subject to second-guessing by an “unelected federal judiciary,” which lacks the background, competence, and expertise to assess public health and is not accountable to the people.” See Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 545 (1985).

States have been granted these powers not only to protect the well-being of their

residents, but also to serve as “a check of abuses” of the federal government’s power.

See Gregory v. Ashcroft, 501 U.S. 452, 458 (1991). This check of power against the

federal government is especially critical here where the United States is the party

responsible for the contamination and resulting harm.

Where sovereign interests are threatened or federal government powers have

gone unchecked, as is the case here, where the United States’ contamination remains

unmitigated as it flows though the communities surrounding the Bases, the State not

only has the authority but an affirmative duty to act to protect those interests. New

24

Mexico’s Constitution expressly recognizes its obligation to protect the interests of

its citizens in a clean and healthy environment. See New Mexico Constitution, Art.

XX, § 21 (“The protection of the state’s beautiful and healthful environment is

hereby declared to be of fundamental importance to the public interest, health, safety

and the general welfare.”). Further, State statutes grant the State the power to act in

furtherance of this objective, including, for example, the grant of power to the

Attorney General to bring suit whenever, in his judgment the interest of the State

requires, NMSA § 8-5-2, as well as the grant of power to NMED to regulate

hazardous wastes and to sue any person who has violated the HWA. NMSA 1978,

§ 74-4-1.22 States also have specific authority to act in the face of public health

and environmental emergencies. See In re Abbott, 954 F.3d 772 (5th Cir. 2020);

Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 29 (1905).

The authority of the State may not be intruded upon unless Congress expressly

states its intention to do so. Alden v. Maine, 527 U.S. 706,727 (1999) (“[T]he

Constitution never would have been ratified if the states and their courts were to be

stripped of their sovereign authority except as expressly provided by the Constitution

itself.”) (quoting Atascadero State Hospital v. Scanlon, 473 U.S. 234, 237, n.2

22 When a state asserts its police powers through litigation, states have a unique role in that they represent not only their own interests as sovereigns, but also the quasi-sovereign interests of their residents’ health, well-being, and environment. See Alfred L. Snapp & Son, Inc. v. Puerto Rico, ex rel. Barez, 458 U.S. 592, 607 (1982).

25

(1985). “[I]t is incumbent upon the federal courts to be certain of Congress’ intent

before finding that federal law overrides the usual constitutional balance of federal

and state powers.” Bond v. United States, 572 U.S. 844, 858 (2014). Thus, “if

Congress intends to alter the usual constitutional balance between the States and the

Federal Government, it must make its intention to do so ‘unmistakably clear in the

language of the statute.” Atascadero State Hospital v. Scanlon, 473 U.S. 234, 242

(1985) (internal citations omitted).

Section 1407(a) is a venue statute that authorizes but does not require the

JPML to transfer civil actions with common issues of fact “to any district court for

coordination and consolidated pretrial proceedings.” Lexecon Inc. v. Milberg Weiss

Bershad Hynes & Lerach, 523 U.S. 26, 42 (1998). “The rule of law applies to

multidistrict litigation under 28 U.S.C. § 1407 just as it does in any individual case.

Nothing in § 1407 provides any reason to conclude otherwise.” In re Nat’l

Prescription Opiate Litig. 956 F.3d 838, 841 (6th Cir. 2020). Cases within an MDL

“retain their separate identities,” and a court may not “distort or disregard the rules

of law applicable to each of those cases.” Id. “Nor can a party’s rights in one case

be impinged to create efficiencies in the MDL generally.” Id. Contrary to the

expressed intent of Congress in promulgating Section 1407, however, the JPML

ignored the law and fundamental structures established by our Constitution and

26

transferred the State’s case to the AFFF MDL, where the State has been subjected

to a further disarming of its Constitutional powers.

In addition to disrupting the system of dual sovereignty, the JPML’s transfer

of the State’s case to the AFFF MDL has improperly divested the duly elected

Attorney General and the appointed NMED Secretary of their ability to represent,

serve, and protect the people of their State. Prior to the State’s transfer, the AFFF

MDL court entered a series of Case Management Orders, described above, that

effectively hand representation of the State’s case to private counsel. The private

counsel selected by the MDL court to handle the State’s case pursuant to Case

Management Order No. 3 (and subsequent orders) do not share the fiduciary

authority or responsibilities of the State’s Attorney General or the NMED Secretary.

Here, where the communities surrounding the Bases are facing a public health and

economic emergency in the face of Defendants’ unchecked contamination, it is the

State and its representatives whose judgment must prevail, not that of counsel for

private litigants. In re Abbott, 954 F.3d 772 (5th Cir. 2020) (“[I]f the choice is

between two reasonable responses to a public crisis, the judgment must be left to the

governing state authority.”) (citing Jacobson v. Commonwealth of Massachusetts,

197 U.S. 11, 29 (1905)); see also Alfred L. Snapp & Son v. Puerto Rico, 458 U.S.

592, 604, (1982) (“‘[I]f the health and comfort to the inhabitants of a State are

threatened, the State is the proper party to represent and defend them.’”).

27

Further still, AFFF MDL Case Management Order No. 3 requires that the

State must pay to the MDL court’s selected counsel a portion of its recoveries in the

form of common benefit fees and costs, thereby improperly commandeering the

resources of the State without its consent. See Case Management Order No. 3, AFFF

MDL Rec. Doc. 72 [A387]; see also Nat’l Federation of Independent Business v.

Sebelius, 567 U.S. 519, 578 (2012) (discussing the risks associated where the federal

government attempts to impose federal policy or taxes upon states without providing

a choice, thereby threatening the “political accountability key to our federal

system”). The severity of the implications associated with these case management

orders on the State’s case cannot properly be dismissed for the sake of “efficiency”

of the MDL as a whole. The JPML erred by failing to consider these effects of the

MDL’s case management structure when transferring the State’s case into its control.

The State’s right to relief is clear and indisputable. Because nothing in Section

1407 expresses an intent to interfere with State powers through the MDL process,

the system of dual sovereignty must be upheld, and the State’s rights granted by the

Tenth Amendment restored, by vacating the order of the JPML.

B. RCRA Provides for Prompt Relief as Necessary to Protect Public Health and the Environment that is Threatened by Releases of Hazardous Substances.

New Mexico has brought an action against the United States under the RCRA

and the HWA to resolve the imminent and substantial endangerment presented at

28

Cannon and Holloman Air Force Bases caused by the United States’ use of AFFF.

RCRA, 42 U.S.C. §§ 6901-92k, is a comprehensive statutory scheme “that governs

the treatment, storage, and disposal of solid and hazardous waste.” Meghrig v. KFC

W., Inc., 516 U.S. 479, 483 (1996). RCRA is “designed to reduce or eliminate the

generation of hazardous waste to minimize the present and future threat to human

health and the environment.” See 42 U.S.C. § 6902(b); Crandle v. City & County of

Denver, 594 F.3d 1231, 1233 (10th Cir. 2010).

RCRA’s citizen suit provision authorizes any person, including a State, to

commence a civil action:

Against any person, including the United States…who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment.

42 U.S.C. § 6972(a)(1)(B). This provision authorizes suit against the United States

for imminent and substantial endangerment claims under RCRA, and authorizes the

district court:

to restrain any person who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste referred to in paragraph (1)(B), to order such person to take such other action as may be necessary, or both.

42 U.S.C. § 6972(a).

29

RCRA also authorizes the State to regulate hazardous wastes within its

borders in lieu of the EPA. In doing so, NMED operates under the HWA, Chapter

74, Article 4 NMSA 1978, and regulations promulgated under the Act. This dual

regulatory framework presumes cooperation between states and the federal

government in reaching the goals of state and federal environmental laws.

Here, the State has not only pursued claims against Defendants under RCRA

and the HWA seeking to cure the imminent and substantial endangerment caused by

their actions, it has also stressed the need for immediate relief by seeking a

preliminary injunction from both the District of New Mexico and the AFFF MDL

court. Despite the clear intent of the statute to provide for swift cleanup of hazardous

substances, especially where those substances threaten human health and the

environment, transfer of the State’s case to the AFFF MDL has impeded the State’s

ability to seek relief to which it is clearly entitled under the law and has disrupted

the cooperative state and federal framework promoted by environmental statutes.

III. NEW MEXICO HAS NO OTHER MEANS TO MOVE ITS CASE FORWARD AND LITIGATE ITS MOTION FOR PRELIMINARY INJUNCTION OTHER THAN A WRIT OF MANDAMUS FROM THIS COURT.

The MDL court has made its intentions clear; the State will have to wait for

discovery, mostly of manufacturer defendants not party to the State’s case, and

bellwether trials of water districts before proceeding with its claims, including its

30

request for limited preliminary relief that is necessary to protect its citizens from

ongoing harm resulting from the Defendants’ unmitigated releases of PFAS

contaminants. The State cannot be deprived of the rightful control of its case under

these circumstances. See Alfred L. Snapp & Son v. Puerto Rico, 458 U.S. 592, 604

(1982) (“[I]f the health and comfort to the inhabitants of a State are threatened, the

State is the proper party to represent and defend them.”).

Issuing the writ that the State requests here will not prejudice the cases that

would remain in the MDL. State litigation outside of an MDL can easily coexist

with an MDL, as has been demonstrated in a number of prior cases. A state and its

agencies have a number of tools available under both state and federal law to act to

protect public health and the environment. Whether the State wishes to proceed

under state or federal law, as the State has done here in bringing both a claim under

RCRA and the HWA, it does not waive its Constitutional rights, including the right

to be free of a federal judiciary silently subsuming the role of the state. See Will v.

Mich. Dep’t of State Police, 491 U.S. 58, 65 (1989) (noting that “Congress should

make its intention ‘clear and manifest’ if it intends to preempt the historic powers of

the States”) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)).

Nothing in Section 1407 allows for this result.

Thus, the only way to allow the State to uphold its constitutional obligation to

protect the citizens and environment of New Mexico is to reverse the decision of the

31

JPML and remand this case to the District of New Mexico to allow for the litigation

to proceed there.

CONCLUSION

The State has the power and the obligation to protect the health and

livelihoods of its citizens, and to protect the environment within its sovereign

territory, when they are threatened. Such is the case here, where Defendants have

released hazardous substances into the environment over the course of many

decades, yet have left these contaminants in the environment unmitigated as they

continue to migrate through groundwater into drinking water and agricultural

sources of water, among other natural resources. Section 1407 did not intend to

infringe on the State’s sovereign powers that are protected by the U.S. Constitution.

Despite the protections of the Tenth Amendment, and as the people of New Mexico

continue to suffer, the State’s case must now take a back seat to water providers and

other private litigants seeking to recover money damages. The matter has now been

pending in the MDL for more than six months, despite the ongoing injuries to human

health and the environment.

Essentially, this Court is tasked with weighing two interests against each

other. The first is the State’s sovereign right to pursue its claim to timely address

the needs of the State and its citizens. The other interest is that of the District Court

in retaining jurisdiction over these claims indefinitely without any action thereon

32

due to the District Court’s admitted devotion to “efficiency” and deference to

counsel for private litigants that do not share the same authority or obligations as the

State. The choice seems clear: the JPML’s transfer order should be vacated and New

Mexico’s claims should be remanded to the District of New Mexico to allow the

State to move forward with its claims.

Dated this 1st day of February, 2021.

Respectfully submitted, HECTOR BALBERAS Attorney General P. Cholla Khoury William G. Grantham Assistant Attorneys General [email protected] [email protected] Post Office Drawer 1508 Santa Fe, NM 87504 (505) 717-3500 Christopher Atencio Assistant General Counsel Jennifer Hower General Counsel Special Assistant Attorneys General [email protected] [email protected] New Mexico Environment Department 121 Tijeras Ave. NE Albuquerque, NM 87102 Phone: (505) 222-9554 Fax: (505) 383-2064

KANNER & WHITELEY, LLC /s/ Allan Kanner Allan Kanner Elizabeth B. Petersen Allison S. Brouk 701 Camp Street New Orleans, LA 70130 Telephone: (504) 524-5777 Special Counsel for Plaintiff –Petitioners Attorney General, State of New Mexico

33

CERTIFICATE OF SERVICE

I hereby certify that on this 1st day of February, 2021, I caused to be served

the Petition for Writ of Mandamus or Prohibition and associated Appendix on behalf

of the State of New Mexico to the following recipients as indicated:

Via ECF and US Mail to:

U.S. Court of Appeals for the Fourth Circuit

1100 E. Main Street, Suite 501 Richmond, VA 23219 (804) 916-2700

Via US Mail to:

Judicial Panel for Multidistrict Litigation

Thurgood Marshall Federal Judiciary Building One Columbus Circle, NE Room G-255, North Lobby Washington, DC 20544-0005 (202) 502-2800

The Honorable Judge Richard M. Gergel, District Judge U.S. District Court for the District of South Carolina

P.O. Box 835 Charleston, SC 29402 (843) 579-2610

Via electronic transmission to:

Those identified on Certificate of Interested Persons as “Other Interested Parties”

Kanner & Whiteley, L.L.C. _/s/ Allan Kanner________________

Allan Kanner [email protected]

34

CERTIFICATE OF COMPLIANCE WITH RULE 32(a)

Certificate of Compliance with Type-Volume Limitation Typeface Requirements, and Type Style Requirements.

1. This brief complies with the typeface requirements of FED. R. APP. P 32 (a) (5) and the type style requirements of FED. R. APP. P 32 (a) (6) because: This brief contains 7,845 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

/s/Allan Kanner__________________ Attorney for the State of New Mexico Dated: February 1, 2021_____________

CERTIFICATE OF INTERESTED PERSONSTABLE OF AUTHORITIESPage(s)Other SourcesINDEX TO APPENDIXRELIEF SOUGHT BY PETITIONERSQUESTION PRESENTEDSTATEMENT OF FACTSI. STATE ACTION WAS NECESSARY TO PROTECT HUMAN HEALTH AND THE ENVIRONMENT FROM THE IMMINENT AND SUBSTANTIAL ENDANGERMENT CAUSED BY THE UNITED STATES’ RELEASES OF PFAS-CONTAINING AFFF AT CANNON AND HOLLOMAN AIR FORCE BASES.A. PFAS have been detected at Cannon and Holloman at Extremely High Levels.B. PFAS Contamination at the Bases Remains Unabated and Continues to Spread and Endanger the Public Health and the Environment.

II. PROCEEDINGS IN THE DISTRICT OF NEW MEXICOIII. AFFF MDL IN THE DISTRICT OF SOUTH CAROLINAIV. THE STATE’S CASE WAS TRANSFERRED TO THE AFFF MDL DESPITE THE PARTIES’ PREFERENCE TO REMAIN IN THE DISTRICT OF NEW MEXICO AND MOVE FORWARD WITH THE LITIGATION THERE.V. THE AFFF MDL COURT DENIED THE STATE’S MOTION FOR LEAVE TO FILE MOTION FOR PRELIMINARY INJUNCTION.

ARGUMENTI. THE RELIEF REQUESTED BY THE STATE IS APPROPRIATE UNDER THESE CIRCUMSTANCES.II. NEW MEXICO HAS A CLEAR AND INDISPUTABLE RIGHT TO CONTROL THE PROSECUTION OF ITS CLAIMS OUTSIDE OF THE AFFF MDL.A. 28 U.S.C. § 1407 Does Not Strip the State of its Police Powers or its Right to Control its Own Claims and have those Claims be Heard as Provided by the United States Constitution.B. RCRA Provides for Prompt Relief as Necessary to Protect Public Health and the Environment that is Threatened by Releases of Hazardous Substances.

III. NEW MEXICO HAS NO OTHER MEANS TO MOVE ITS CASE FORWARD AND LITIGATE ITS MOTION FOR PRELIMINARY INJUNCTION OTHER THAN A WRIT OF MANDAMUS FROM THIS COURT.

CONCLUSION

Documents

0968 Draft Mandamus re New Mexico Transfer to MDL (00032623) · T. Response of Tyco et al. in Opposition to State of New Mexico’s Motion to Vacate Conditional Transfer Order No